John Bradley, email responses to PolitiFact Texas (excerpted), April 2012

1243 pm, April 20, 2012

Essentially, Jana Duty is now saying that a chart from the Office of Court Administration proves her 36% stat. That's easily nonsense.

For the Year 2011, it shows that there were a total of 2013 disposed felony cases. I have questions about how they count "cases", but let's leave that for a moment.

Then it shows that 738 felony cases were "dismissed".

By dividing the 738 into the 2013, JD comes up with 36%.

How in the world does she determine that every dismissed "case" turned into a misdemeanor referral? Nothing in the stats shows that to be true. Surely she can count with more authority in a given year how many misdemeanors her office receives through a referral from the DA's office. Dee Hobbs screens every one of them. (And, as I have mentioned, he has accepted them as reasonable and appropriate referrals and had his prosecutors present them to judges who also approve the plea agreement.)

Dismissals happen for lots of reasons:

A grand jury no bills the case (likely from 10-20% in a given year) after finding there is not probable cause to support a felony charge (though it might support a misdemeanor charge). We then dismiss the case.

A judge considers the case when setting punishment in another case (see section 12.45 of the Penal Code). We then "dismiss", even though it was effectively prosecuted and punished. (This is a very common prosecutor tool for grouping multiple charges into a single disposition).

The defendant was sentenced in another case and gets a very long prison sentence, making it unnecessary to continue prosecution in that felony case. (Sort of like 12.45 without the formal consideration by the judge.)

The case was referred for prosecution as a misdemeanor (generally with an agreed punishment recommendation that is accepted by the county attorney). We dismiss after the defendant is sentenced on the misdemeanor.

There was a problem with the search or confession preventing prosecution. We dismiss because we no longer have credible evidence.

The victim refuses to cooperate. We dismiss because we no longer have sufficient evidence.

And many other rational grounds for exercising our discretion.

Now, back to how we count "cases":

As I mentioned, each separate felony offense that is charged may not be counted as a separate "case" if the clerk only reports a cause number that may include numerous separate counts (or offenses). This is an ongoing issue with clerks and statistics. If this is true, then the total number of felony offenses being filed is being seriously undercounted.

In short, we can likely cut her 36% statistic in half simply by looking at the rate of no-bills of cases within the grand jury. Then, you can cut the number further by assuming there are cases not prosecuted because a sufficient punishment was obtained in another related charge. Then, you can cut the number again by assuming some cases revealed weaknesses in the investigation, etc., that resulted in a dismissal. So, some number is left that covers the cases we do actually refer to the county attorney for prosecution.

I would only be guessing as to what number that would be. But it sure doesn't suggest anything like 36%. (And as a side note, even if it were 36%, how is that proof of bad outcome?)

My bottom line: the referrals are being properly made by felony prosecutors, accepted by misdemeanor prosecutors and presented to judges screen and approve plea bargain. And our crime rate reflects we are making successful referrals that protect the public with a minimum of criminal justice resources.

126 pm, April 20, 2012

I just spoke to Lisa David, our district clerk, and she confirmed that a "case" for statistical purposes, only covers the indictment or information and does not count the various multiple charges that might be in a single indictment or information (the charging instrument). So, if a defendant is prosecuted for 5 counts of sexual assault in a single indictment, that is only reported as 1 "case".

The total number of our cases referred from the district attorney to the county attorney in 2011 for misdemeanor prosecution was 377. Using the 2,013 number from the OCA (which is undercounting), our percentage would be 18% (which happens to be the number she tells others is a "normal" referral percentage). I don't know what would be "normal". It depends on your system for prosecution and what you think is appropriate for misdemeanor referrals. Again, my bottom line is whether the system is maintaining public safety.

Of the 377 cases referred, all but 25 of them were sent with an agreed disposition. That means we had already worked out a plea agreement and the county attorney only had to file the case and present the guilty plea for approval by a judge...

325 pm, April 20, 2012

Update.

Looks like 25 of those referrals were either sent or taken back and resolved by our office, so the number of misdemeanor referrals is really 352.